Ninth Circuit Panel Rules CA Unsafe Handgun Act not Covered by Second Amendment

Gun Watch ^ | 10 August, 2018 | Dean Weingarten

[marktwain]

A three judge panel in the Ninth Circuit Court of Appeals has ruled the restrictions of the California Unsafe Handgun Act (UHA) do not violate the Second Amendment.  In circular reasoning, the opinion posits the UHA restrictions do not restrict behavior protected by the Second Amendment. They then apply the least restrictive Constitutional test to determine if the behavior is protected. Unsurprisingly, they find that it is not.

The key to the decision is the Ninth Circuit's hostility to a broad reading of the Second Amendment. The Circuit, in it's en banc rulings, such as Peruta, Tiexeira v. County of Alameda, and in a three judge panel, Silvester v. Harris, has consistently worked to restrict Second Amendment rights to the narrowest possible box.  An analogous reading of the First Amendment would be that the State can restrict certain publications on the grounds that they might impact public safety. For example, that violent video games could be banned. The Supreme Court has rejected that argument for the First Amendment.

Here is the summation of the opinion of the court, From Pena v. Lindley:

California requires that new models of handguns meet certain criteria, and be listed on a handgun roster, before they may be offered for sale in the state. Two provisions require that a handgun have a chamber load indicator and a magazine detachment mechanism, both of which are designed to limit accidental firearm discharges. The third provision, adopted to aid law enforcement, requires new handguns to stamp microscopically the handgun’s make, model, and serial number onto each fired shell casing. Plaintiffs asserted that these three provisions have narrowed their ability to buy firearms in California, in violation of the Second Amendment, and that the handgun roster scheme imposes irrational exceptions, in violation of the Equal Protection Clause of the Fourteenth Amendment.

The panel held that it did not need to reach the question of whether the challenged provisions fell within the scope of the Second Amendment’s right to bear arms because, even assuming coverage, the provisions passed constitutional muster. Applying intermediate scrutiny, the panel held that the Act only regulates commercial sales, not possession, and does so in a way that does not impose a substantial burden on purchasers. The panel held that the requirements for a chamber load indicator and a magazine detachment mechanism reasonably fit with California’s interest in public safety. The panel further held that California had met its burden of showing that the microstamping requirement was reasonably tailored to address the substantial problem of untraceable bullets at crime scenes and the value of a reasonable means of identification. The panel rejected plaintiffs’ claim that they have a constitutional right to purchase a particular handgun and their claim that the provisions violate the Equal Protection Clause.

 The Court's using of the words "intermediate scrutiny" belies the fact that, in the case of the Second Amendment, "intermediate scrutiny" has collapsed to mere rational basis scrutiny. Rational Basis scrutiny is so close to no scrutiny, there is effectively no difference.

Under "intermediate scrutiny" in a Second Amendment case at the Ninth Circuit, to pass Constitutional muster, the State only has to claim some vague governmental interest. "Public Safety" is a favorite. It can be made to fit nearly every circumstance.

Then the State need only claim there is some relationship between the interest and the law in question. The State does not have to show the law actually accomplishes any increase in public safety; nor does the state have to show the law performs better than other, less restrictive, remedies.

In effect, in the Ninth Circuit and in other circuits hostile to a broad interpretation of Second Amendment rights, intermediate scrutiny is used as a sophistry to restrict the Second Amendment to narrower and narrower meanings.

The problem cannot be solved at the current Ninth Circuit. There are too many judges on the Circuit actively hostile to Second Amendment rights.

Given the political situation in California, it is unlikely the California legislature will correct the situation. Citizens in California who resent every greater restrictions on exercise of their Second Amendment rights have one judicial remedy left: appeal to the Supreme Court.

The Supreme Court may or may not accept the case. The Supreme Court has been unwilling to accept appeals from the Ninth Circuit on Second Amendment grounds.  I cannot recall a single case the Supreme Court has accepted from the Ninth Circuit on a Second Amendment challenge.

When and if President Trump's nominee, Judge Kavanaugh, becomes Justice Kavanaugh on the Supreme Court, the makeup of the Supreme Court may be changed enough so the Court will accept Second Amendment appeals from the Ninth Circuit.

That remains to be seen.

An alternate, and plausible solution would be for the Congress of the United States to pass legislation to enforce Second Amendment rights against the states. A national reciprocity act, as has broad support in the Congress, would go a long way to restore Second Amendment rights to Californians.

Congress could remove the current prohibition on interstate handgun sales, if it so wished.

©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch

[marktwain]

The Ninth Circuit is hostile to the Second Amendment.

[donozark]

There was some talk of abolishing the Ninth Circus Court. Do it!

[HombreSecreto]

Which will be reversed by SCOTUS.

Time to break up the 9th Circuit and pack the remnants with common-sense, constitutional jurists!

MAGA - Make Appeals Courts Great Again

[PapaBear3625]

The 9th Circuit has 22 judges, with 6 slots being vacant and subject to being filled by Trump. The district courts in the 9th will have 24 vacancies out of 122 to be filled by Trump.

If we can retain control of the Senate, we can shift the 9th.

[marktwain]

Only if SCOTUS agrees to hear the case. They have not agreed to hear a Second Amendment case from the Ninth Circuit yet.

[PapaBear3625]

Sorry, correction, 29 judgeships not 22.

[jimfree]

Actually, the least restrictive constitutional test is rational basis.

[trebb]

How about manufacturers refuse to cater to Kalifornia - if nobody there can buy guns or cars, then the good ones will leave and the State will rot itself to death....

[Cboldt]

-- The Ninth Circuit is hostile to the Second Amendment. --

Quelle surprise.

Nearly all, effectively all of the US Federal Court system is hostile to the 2nd amendment to some degree. Even SCOTUS, which redefined the holding of the Miller case.

To be covered by the 2nd amendment in the test applied in the Miller case, the weapon had to have a military use. Under the Miller holding redefined by a majority in the Heller case, weapons that have been successfully restricted to the military by long standing laws are not covered by the 2nd amendment.

At any rate, the recent 9th Circuit circular reasoning and redefinition of intermediate scrutiny is nothing new or surprising. Courts are bastions of rationalizing outcomes with dishonest logic. No moral authority whatsoever.

[FlingWingFlyer]

I knew that the Ninth Circus would only get worse once Cauliphonya legalized “medical” marijuana as a “recreational” drug.

[American in Israel]

Our Judicial system is unconstitutional.

[TaxPayer2000]

The third provision, adopted to aid law enforcement, requires new handguns to stamp microscopically the handgun’s make, model, and serial number onto each fired shell casing.

Always police your brass...

[Dusty Road]

Well just collect a little stamped brass at the local, and toss it around your favorite crime scene and just sit back and watch the fun.

[marktwain]

Actually, the least restrictive constitutional test is rational basis.

---

Yes, least restrictive for the government.

Almost anything can pass rational basis. The government just has to make a claim that there is some rational reason for the law. It does not have to be true.

In several circuits, “Intermediate scrutiny” has collapsed to “rational basis”.

But, I am not a lawyer. I am willing to be educated to a different understanding.

[gibsonguy]

This is why the Rats are going to fight with everything they have to stop Kavanaugh it keeps the Supreme at 4-4 until next year. Renegade Judges can run wild and the 9th circus can set precedents

[jimfree]

Rational basis is essentially being able to articulate a legitimate government interest and stops there. Intermediate scrutiny steps that up to an important government interest and requires that the government action must be through means that further that interest. Intermediate scrutiny is commonly used for sex discrimination. Strict scrutiny requires a "compelling government interest" with the government action narrowly tailored to achieve that interest. Strict scrutiny is applied when basic rights are involved - speech, religion, etc.

This online legal dictionary runs through each of the review levels with some good examples.

Legal Dictionary Article on Strict Scrutiny

[daler]

"There was some talk of abolishing the Ninth Circus Court. Do it!"

You realize, of course, that if that were to actually happen a leftist judge would overrule the decision...

[MileHi]

...requires new handguns to stamp microscopically the handgun’s make, model, and serial number onto each fired shell casing.

Does any company actually make such a thing? I wish every firearm and ammo manufacturer would refuse to do business in Kali, including all of their law enforcement.

[marktwain]

Yes, that is the way I have read it.

The Ninth Circuit, in Peruta, simply accepts the idea that restricting access to guns promotes safety. The ignored the fact that open carry is banned in California.

[Cletus.D.Yokel]

Easier: Buy a revolver.